A Big Week for Defamation: Enter Sandmann, Exit Sullivan? - Fordham Intellectual Property, Media & Entertainment Law Journal
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A Big Week for Defamation: Enter Sandmann, Exit Sullivan?

A Big Week for Defamation: Enter Sandmann, Exit Sullivan?

In 1964, the Supreme Court decided the landmark case of New York Times v. Sullivan.1 The decision raised the bar for public figures, as opposed to private citizens, to succeed on defamation claims. As a result of the decision, public officials must prove that “the [alleged defamatory] statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”2 The Supreme Court later expanded the standard to include not just public officials, but any public figure. In the 1964 decision, Justice Brennan wrote “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space.’”3

On Tuesday, February 19, 2019, the Supreme Court denied the petition for writ of certiorari in the case McKee v. Cosby.4 In 2014, Katherine McKee accused Bill Cosby of rape. McKee argued that Bill Cosby’s attorney, writing and acting on behalf of his client, leaked a letter for the purposes of damaging “her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame.”5 The Court of Appeals considered McKee to be a “limited-purpose public figure,” meaning her case would be subject to New York v. Sullivan’s heightened standard for defamation claims.6 McKee argued that the Court of Appeals erred in classifying her as a limited-purpose public figure.7 The Supreme Court denied her petition for writ of certiorari.8

In his concurrence, Justice Thomas voiced skepticism about the constitutional support for the Court’s decision in New York Times v. Sullivan. He criticized Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law.”9 Thomas adheres to an originalist interpretation of the Constitution, a belief that constitutional issues should be decided in accordance with the drafters’ intent and understanding of the U.S. Constitution’s language.  Thomas explained that “[t]he common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability” to recover.10 After citing language from Blackstone’s Commentaries on the Laws of England, Thomas noted that “the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.”11 Thomas concluded that because “there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment,” the Court “should reconsider [its] jurisprudence in this area.”12.

Although the concurrence has no direct legal consequences, Thomas’ concurrence did not go unnoticed. Free speech and press advocates were quick to defend New York Times v. Sullivan, arguing that a possible overturn would cause a chilling effect on free speech and hinder the press’s ability to report.13 Thomas’ opinion is surprising because the Court, including Thomas, normally eschews the use of originalism for free speech issues because “[m]any of the framers had a very narrow understanding of constitutional freedom of the press.”14 Thomas’ position doesn’t appear to be shared even by the other conservative justices, none of whom joined in the concurrence.15 In fact, during their careers as appellate court judges, Justices Gorsuch and Kavanaugh wrote opinions indicating concern for the press and free speech in the context of defamation lawsuits.16

Thomas’ concurrence comes at an interesting time, as President Trump has expressed his desire to “open up” libel laws to make it easier for plaintiffs to recover.17 Trump frequently accuses the media of spreading falsehoods.18 Professor Noah Feldman of Harvard Law School called the opinion “a sign of the times because it reflects distrust of the news media.”19

A different defamation case also made headlines this week. Nicholas Sandmann, the Covington Catholic High School student who was filmed wearing a red Make America Great Again cap and standing next to a Native American activist, filed a lawsuit in a Kentucky federal court against the Washington Post. In the lawsuit, Sandmann’s attorneys argue that the Washington Post “did not conduct a proper investigation before publishing its false and defamatory statements of and concerning Nicholas.”20 Sandmann asks for $50 million in compensatory damages and $200 million in punitive damages.21

Experts have questioned the likelihood of success of Sandmann’s lawsuit.22 Many of the allegedly defamatory statements could be considered opinions.23 Courts do not recognize opinions as defamation because opinions are not provable statements of fact.24 Still, the case raises interesting issues. There is the question of whether Sandmann is a private or public figure and therefore whether New York Times v. Sullivan would apply. The complaint argues that Sandmann is a private figure.25 But the complaint still contends that the Washington Post acted negligently and with actual malice.26 In Kentucky, “[p]unitive damages may be recovered only if the plaintiff shall allege and prove publication with legal malice and that the newspaper, magazine, or periodical failed to make conspicuous and timely publication of a correction after receiving a sufficient demand for correction.”27

Experts also noted the political tone of the complaint, which accuses the Washington Post of having a “biased agenda against President Donald J. Trump” and engaging in a “modern-day form of McCarthyism.”28 George Freeman of the Media Law Resource Center said the complaint “reads like a political screed.”29 Professor Alan Dershowitz of Harvard Law School, who was more optimistic of the case’s chance for success, still called the political aspects of the complaint “a serious tactical blunder by the lawyers.”30


  1. 376 U.S. 254, 254 (1964).

  2. Id. at 279–80.

  3. Id. at 271–72.

  4. 874 F.3d 54 (1st Cir. 2017), cert denied No. 17-1542, 2019 WL 659764 (U.S. Feb. 19, 2019).

  5. No. 17-1542, 2019 WL 659764 at *1, quoting App. to Pet. for Cert. 93a.

  6. 874 F.3d 54, 61–62 (1st Cir. 2017) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).

  7. McKee, No. 17-1542, 2019 WL 659764, at *1 (U.S. Feb. 19, 2019).

  8. Id.

  9. Id.

  10. Id. at *3.

  11. Id. at *4.

  12. Id. at *7.

  13. Jay Michaelson, If You Don’t Value New York Times v. Sullivan, You’d Better Start, Because Clarence Thomas Is Gunning for It, Daily Beast (Feb. 19, 2019), https://www.thedailybeast.com/if-you-dont-value-times-v-sullivan-youd-better-start-because-clarence-thomas-is-gunning-for-it. [https://perma.cc/R6U2-2CVG]

  14. Noah Feldman, Clarence Thomas Attacks the Press, Contradicting … Clarence Thomas, Bloomberg (Feb. 19, 2019), https://www.bloomberg.com/opinion/articles/2019-02-19/justice-thomas-contradicts-himself-in-attack-on-press-libel-law.

  15. Adam Liptak, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, N.Y. Times (Feb. 19, 2019), https://www.nytimes.com/2019/02/19/us/politics/clarence-thomas-first-amendment-libel.html. [https://perma.cc/Z7RN-UKSU]

  16. Id.; See Bustos v. A&E Television Networks, 646 F.3d 762, 764 (10th Cir. 2011); Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1339 (D.C. Cir. 2015).

  17. Hadas Gold, Donald Trump: We’re Going to ‘Open Up’ Libel Laws, Politico (Feb. 26, 2016), https://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866. [https://perma.cc/42CW-4STU]

  18. Id.

  19. Feldman, supra note 13.

  20. Complaint at 12, Sandmann v. WP Company LLC, No. 2:19-cv-00019-WOB-CJS (E.D. Ky. Feb. 19, 2019).

  21. Id. at 37-38.

  22. Matthew Rozsa, Covington Catholic lawsuit against Washington Post has “very tough burden to overcome”: libel expert, Salon (Feb. 20, 2019), https://www.salon.com/2019/02/20/covington-catholic-lawsuit-against-washington-post-has-very-tough-burden-to-overcome-libel-expert/. [https://perma.cc/43BX-SAZB]

  23. Max Londberg, Nick Sandmann of CovCath May Face Challenges In Proving Defamation, Experts Say, Cincinnati Enquirer (Feb. 11, 2019), https://www.cincinnati.com/story/news/2019/02/11/nick-sandmann-covcath-lacks-obvious-defamation-claim-experts-say/2757343002/. [https://perma.cc/QT3S-JBCC]

  24. Id.

  25. Complaint at 31, Sandmann v. WP Company LLC, No. 2:19-cv-00019-WOB-CJS (E.D. Ky. Feb. 19, 2019).

  26. Id.

  27. Ky. Rev. Stat. Ann. § 411.051.

  28. Complaint at 1-3, Sandmann v. WP Company LLC, No. 2:19-cv-00019-WOB-CJS (E.D. Ky. Feb. 19, 2019).

  29. Emma Ockerman, Legal Experts Aren’t Convinced the Covington Catholic Teen Has a Case Against the Washington Post, Vice News (Feb. 21, 2019), https://news.vice.com/en_us/article/bjqyn5/legal-experts-arent-convinced-the-covington-catholic-teen-has-a-case-against-the-washington-post. [https://perma.cc/D8AU-9HSJ]

  30. Fox News Insider, Dershowitz: Covington Student’s Lawyers Made ‘Serious Tactical Blunder’ in WaPo Lawsuit, Fox News Insider (Feb. 21, 2019), https://insider.foxnews.com/2019/02/21/dershowitz-covington-student-nick-sandmanns-lawyers-made-mistake-wapo-lawsuit. [https://perma.cc/8UP3-SPFB]

Alessandra Pineiro

Alessandra Pineiro is a second-year student at Fordham Law School. She is interested in litigation relating to communications and technology, and criminal law.